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Agenda 05/13/2013 Item #16A325/14/2013 16.A.32. EXECUTIVE SUMMARY Recommendation to approve and authorize the County Attorney's Office to retain consulting and expert witness services for Eminent Domain Litigation for the US -41 /Collier Boulevard Intersection Improvement Project (Project No. 60116) in compliance with Section VII H of the Purchasing Policy. The estimated fiscal impact is approximately $150,000 for three consulting firms. OBJECTIVE: To secure consulting and expert witness services to support the pending litigation over the matter of full compensation and business damages for the taking of property required for the construction of improvements to the intersection of US -41 and Collier Boulevard. CONSIDERATIONS: Collier County retained the law firm of Bricklemyer, Smolker & Bolves, P.A., for general eminent domain services (Contract No. 06 -4047) on or about April 24, 2007 (BCC Agenda 16K1). This Contract has been amended twice to extend the term (BCC Agenda 16K1 (1.25.11)) and to increase the hourly rates (BCC Agenda 16K1 (1.22.13)). The firm is currently representing the County in the eminent domain litigation for the US -41 /Collier Boulevard Intersection Improvement Project. The initial purchase order to Bricklemyer was opened on August 31, 2012 for $45,000. A second purchase order to Bricklemyer in the amount of $150,000 was opened on December 17, 2012. Near the end of January 2013 the firm reorganized and changed its name to Smolker, Bartlett, Schlosser, Loeb and Hinds (hereinafter "Smolker- Bartlett"). On the April 23, 2013 the Board approved an Assumption Agreement with the firm of Smolker- Bartlett to continue representing Collier County in this complex civil litigation. All of the parcels not yet acquired by negotiation were taken by the County condemnation in March and early April 2013 by and through the efforts of Smolker - Bartlett. At this point in time it seems highly likely that the takings for the project will result in two eminent domain trials. Due to the complexity of this eminent domain litigation and the likelihood of having to prepare and prosecute two trials on behalf of the Collier County a purchase order to Smolker - Bartlett was opened for $450,000. In addition to the hiring of legal counsel, the County must retain expert witnesses in support of this litigation. The following three expert witnesses are required at this time based on claims received. Claims for recovery of business damages have been received from businesses that claim a "permanent closure" will result from the County's construction of an overpass at the subject intersection sometime in the future. So far, one claim has been filed in the amount of $3,151,534; and another claim has been filed in the amount of $861,818. The County is required by statute to make a monetary offer to settle these claims within 120 days of receipt of the claim; and if no offer is made within that time frame, the court will consider our "offer" as zero for the purpose of calculating attorney fees according to the benefit formula in Section 73.092, Florida Statutes. Packet Page -1502- 5/14/2013 16.A.32. There are seven other businesses located at the intersection from which other business damage claims may be forthcoming. They have until the first week in June 2013 to make any such claims. Three expert witness consultants recommended by outside counsel Smolker Barnett include: Equable Solutions, Inc., a firm specializing in eminent domain real estate appraisal. Their initial scope of work will consist of the following: (1) Identify comparable locations that resemble the 41/951 intersection in terms of current physical layout and in terms of such locations being or having been a candidate for a future Grade - Separated Overpass (GSO). Once these study areas have been identified, they will (2) research land sales and rental information proximate to such study areas in order to (3) ascertain and report what, if any, value loss has occurred to the parcels as a result of the information in the marketplace concerning the subject intersection being a candidate for a future GSO, and then (4) apply the study's findings to the properties located proximate to the US -41 / Collier Boulevard intersection improvement project. Collier County will contract with the vendor directly in compliance with the Purchasing Policy Section VII H. The estimated fiscal impact is $50,000. Should expert witness services be required, the initial PO may be modified to expand on scope and fee. In addition, Smolker Barnett recommends hiring the CPA firm of Gersen Preston Robinson, Inc. The proposed scope of work for this CPA firm includes: "Review Business Damage Claims submitted by businesses located proximate to the US -41 / Collier Boulevard project. Advise County on the validity of the claims, and whether proper methodology was employed in their development. Counsel with staff and legal counsel as to a recommended offer of settlement for each claim. Should expert witness service be required, the initial PO may be modified to expand on scope and fee." Collier County will contract with the vendor directly in compliance with the Purchasing Policy Section VII H. The estimated fiscal impact is $50,000. Should expert witness services be required, the initial PO may be modified to expand on scope and fee. Third, Smolker Barnett recommends hiring Joseph Roles & Associates, Inc. The proposed scope of work includes: "Analyze cost -to -cure proposals submitted on behalf of property owners to determine whether and to what extent such cures are necessary. Review associated estimate of the cost to perform said cures as to reasonableness. Analyze the site circulation impacts as claimed by the property owners' experts and conduct independent analysis to arrive at contradictory findings (if any). Expose any defects in the assumptions made by engineers employed as experts by the property owners and advise staff and legal counsel accordingly. Assist in the development of counter - offers in preparation for mediation." Collier County will contract with the vendor directly in compliance with the Purchasing Policy Section VII H. The estimated fiscal impact is $50,000. Should expert witness services be required, the initial PO may be modified to expand on scope and fee. Based on statutory deadlines, it is imperative that the expert witnesses begin an analysis of these claims at the earliest possible time in order to be able to bring an offer of settlement back to the Board for approval prior to the expiration of the 120 day period. Section VII, H of the Purchasing policy states: "The acquisition of services from experts or consultants for purposes of preparing for or defending against imminent or pending litigation or administrative proceedings shall be exempt from all competitive requirements of this policy. Any such acquisitions that do not exceed $50,000 may be approved by the County Attorney and the Purchasing Department without further action. Acquisitions that exceed $50,000 may be authorized by the County Packet Page -1503- 5/14/2013 16.A.32. Attorney and the Purchasing Department, but will be reported at a regular meeting of the Board for ratification." FISCAL IMPACT: Approximately $150,000 for the three consulting firms: Equable Solutions, Inc., Gerson, Preston, Robinson, and Joseph Roles & Associates. The amount for each firm may vary and may increase should testimony at trial be required. Source of funds are impact fees. GROWTH MANAGEMENT IMPACT: There is no growth management impact association with this recommendation. LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney's Office and is legally sufficient for Board approval, and requires a majority vote. — CMG RECOMMENDATION: For the Board of County Commissioners to approve and authorize the County Attorney's Office to retain consulting and expert witness services for Eminent Domain Litigation for the US -41 /Collier Boulevard Intersection Improvement Project (Project No. 60116) in compliance with Section VII H of the Purchasing Policy. The estimated fiscal impact is approximately $150,000 for three consulting firms. Prepared by: Kevin Hendricks, Right -of -Way Acquisition Manager Packet Page -1504- 5/14/2013 16.A.32. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.A.16.A.32. Item Summary: Recommendation to approve and authorize the County Attorney's Office to retain consulting and expert witness services for Eminent Domain Litigation for the US- 41 /Collier Boulevard Intersection Improvement Project (Project No. 60116) in compliance with Section VII H of the Purchasing Policy. The estimated fiscal impact is approximately $150,000 for three consulting firms. Meeting Date: 5/14/2013 Prepared By Name: NeetVirginia Title: Legal Assistant/Paralegal,County Attorney 5/8/2013 1:48:12 PM Submitted by Title: Assistant County Attorney,County Attorney Name: GreeneColleen 5/8/2013 1:48:15 PM Approved By Name: HendricksKevin Title: Manager - Right of Way,Transportation Engineering Date: 5/8/2013 3:40:00 PM Name: GreeneColleen Title: Assistant County Attorney,County Attorney Date: 5/8/2013 3:47:30 PM Name: KlatzkowJeff Title: County Attorney Date: 5/8/2013 3:59:42 PM Name: IsacksonMark Title: Director -Corp Financial and Mgmt Svs,CMO Packet Page -1505- Date: 5/8/2013 4:17:52 PM Name: OchsLeo Title: County Manager Date: 5/8/2013 4:41:22 PM Packet Page -1506- 5/14/2013 16.A.32.